92 Decision Citation: BVA 92-19448
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-22 970 ) DATE
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THE ISSUES
Entitlement to a rating in excess of 30 percent for a
psychiatric disability.
Entitlement to an increased (compensable) disability
evaluation for headaches.
Entitlement to an increased (compensable) disability
evaluation for hepatitis.
REPRESENTATION
Appellant represented by: Veterans Affairs Board,
Mississippi
ATTORNEY FOR THE BOARD
Mark J. Swiatek, Counsel
INTRODUCTION
The veteran had active service from May 1979 to June 1990.
This matter came before this Board from a December 1990
decision from the Jackson, Mississippi, Regional Office
(hereinafter RO). The notice of disagreement was received
on January 14, 1991. The statement of the case was
furnished on February 13, 1991. The substantive appeal was
received on April 8, 1991. The representative throughout
the appeal, the Mississippi Veterans Affairs Commission,
presented argument on appeal in May 1991. The appeal was
received and docketed at the Board in June 1991. In July
1991, the Board remanded the case to the RO for further
development. In January 1992, the RO confirmed and
continued the previous determination and furnished the
veteran a supplemental statement of the case. The
representative made additional written argument in April
1992. The appeal was received and redocketed at the Board
in April 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that she should be entitled to at least
a 50 percent evaluation for psychiatric disability and that
headaches and hepatitis are currently not adequately rated
by the less than compensable disability evaluation now in
effect.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. 7104 (1992),
following review and consideration of all evidence and
material of record in the veteran's claims file and for the
following reasons and bases, it is the decision of the Board
that the evidence warrants an increased rating for the
veteran's psychiatric disability and that a preponderance of
the evidence is against an increased rating for headaches or
hepatitis.
FINDINGS OF FACT
1. The current manifestations of the veteran's psychiatric
disability are productive of severe social and industrial
impairment and prevent the veteran from undertaking
substantially gainful employment at this time.
2. Headaches are currently manifested by infrequent attacks.
3. There are no appreciable disabling manifestations of
hepatitis at this time.
CONCLUSIONS OF LAW
1. A 100 percent schedular evaluation on the basis of
unemployability due to service-connected psychiatric
disability is warranted. 38 U.S.C. §§ 1155, 5107 (1992);
38 C.F.R. 4.1, 4.7, 4.16(c), 4.129, 4.130, and Part 4,
Code 9207 (1991).
2. An increased (compensable) disability evaluation for
headaches is not warranted. 38 U.S.C. §§ 1155, 5107;
38 C.F.R. §§ 4.1, 4.7, 4.41, Part 4, Code 8100.
3. An increased (compensable) disability evaluation for
hepatitis is not warranted. 38 U.S.C. §§ 1155, 5107;
38 C.F.R. §§ 4.1, 4.7, 4.41, Part 4, Diagnostic Code 7345.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran has presented
well-grounded claims within the meaning of 38 U.S.C.
§ 5107(a). That is, the claims are not implausible. We are
satisfied that all relevant facts have been properly
developed.
I. Psychiatric Disability
The relevant facts are that service connection for major
depression was granted by the RO in December 1990 and a
30 percent evaluation was assigned. The VA psychiatric
examination of August 1990 revealed that the veteran had
limited socialization and disturbance of affect and mood.
It was reported that she was not working and was not
currently residing with her spouse. Outpatient treatment
records from June 1990 through August 1991 show that she was
seen on a regular basis and that she had difficulty with
increase in pressure at home and still had appreciable
depression, auditory hallucinations, sleep disturbance and
paranoia. She was also hospitalized for psychiatric
observation by the VA in July 1990.
Under 38 U.S.C. § 1155, disability evaluations are
determined as far as practical based on the average
impairment of earning capacity. Separate diagnostic codes
identifying various disabilities are found in the VA
Schedule for Rating Disabilities, 38 C.F.R. Part 4. Under
the schedule for rating mental disorders, 38 C.F.R. § 4.132,
the general rating formula for psychotic disorders provides
ratings from 0 to 100 percent essentially determined by the
nature and extent of psychotic symptomatology as it affects
social and industrial adaptability. The general rating
guidelines regarding evaluation of mental disorders are
found in 38 C.F.R. §§ 4.129 and 4.130.
The record shows that the veteran has not been able to
undertake any gainful employment since her separation from
active service. The outpatient treatment reports note that
she has had difficulties with minimal stress situations that
have arisen in her current living situation. She has
reported continued depression, isolation and
hallucinations. We find that the current psychotic
manifestations are more than definitely disabling and more
clearly approximate the criteria for the 70 percent
evaluation that contemplates severe impairment from
psychiatric symptoms.
As we had found that the 70 percent evaluation is
appropriate for the psychiatric disability, the statutory
duty of the VA to assist the claimant in developing facts
pertinent to the claim and the duty to distribute full
information regarding benefits requires consideration of
38 C.F.R. 4.16(c) in this case. The only compensable
service-connected disability is the psychiatric disorder
rated 70 percent disabling. Under § 4.16(c), it is provided
that in such circumstances a 100 percent schedular
evaluation may be assigned, under the appropriate diagnostic
code, when the mental disorder precludes the veteran from
securing or following a substantially gainful occupation.
The veteran's presentation on the current compensation
examination and the outpatient treatment records is
sufficient evidence, in our view, of her unemployability as
a result of her service-connected psychiatric disability at
this time.
II. Headaches and hepatitis
The relevant facts are that the RO granted service
connection for headaches and hepatitis in December 1990
assigning a noncompensable evaluation for each on the basis
of the service medical records and VA medical reports.
Under 38 C.F.R. § 4.124(a) Code 8100, a noncompensable
evaluation is warranted for migraine with attacks less often
than the frequency of attacks required for a 10 percent
evaluation, that is, prostrating attacks averaging one in 2
months over the last several months. A 30 percent
evaluation is warranted with such attacks occurring on an
average of once a month over the last several months. A
50 percent evaluation requires very frequent, completely
prostrating and prolonged attacks productive of severe
economic inadaptability. The implementing regulations also
provide that the next higher evaluation shall be assigned
where the evidence more clearly approximates the criteria
for that evaluation. 38 C.F.R. § 4.7.
On the August 1990 VA examination, the veteran reported that
she had 1 or 2 headaches a week that lasted for a few
hours. The outpatient treatment reports thereafter through
August 1991 do not contain any reference to recurring
headaches of the frequency more nearly approximating the
criteria for the 10 percent evaluation. The less than
compensable evaluation is appropriate for the extent and
frequency of headaches as reported.
As for hepatitis, the rating criteria set forth under
38 C.F.R. § 4.114, Diagnostic Code 7345 provide the
following ratings for hepatitis:
Healed, nonsymptomatic infectious
hepatitis warrants a noncompensable
evaluation. A 10 percent evaluation is
warranted for infectious hepatitis
manifested by demonstrable liver damage
with mild gastrointestinal disturbance.
A 30 percent evaluation requires minimal
liver damage with associated fatigue,
anxiety, and gastrointestinal disturbance
of a lesser degree and frequency than
that required for a 60 percent
evaluation, but necessitating dietary
restriction or other therapeutic
measures. A 60 percent evaluation is
warranted for infectious hepatitis with
moderate liver damage and disabling
recurrent episodes of gastrointestinal
disturbance, fatigue, and mental
depression. A 100 percent evaluation is
warranted with marked liver damage,
manifested by liver function tests, and
marked gastrointestinal symptoms or with
episodes of several weeks duration,
aggregating three or more a year,
accompanied by disabling symptoms
requiring rest therapy. (38 C.F.R.
Part 4, Code 7345)
The August 1990 VA examination did not confirm demonstrable
liver damage or gastrointestinal disturbance related to
hepatitis, although such complaints were noted. The VA
outpatient treatment reports during the subsequent year and
the July 1990 hospitalization summary, moreover, are also
unremarkable for confirmed manifestations of hepatitis. The
record does not allow for a higher evaluation at this time.
The Board has considered the record regarding the disability
evaluation for headaches and hepatitis under the guidelines
set forth in Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
We also find that the disability picture is not so
exceptional or unusual to render inapplicable the regular
schedular standards. 38 C.F.R. § 3.321(b)(1).
ORDER
An increased rating for psychiatric disability is granted to
the extent indicated subject to the regulations governing
payment of monetary awards.
An increased rating for headaches is denied.
An increased rating for hepatitis is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA CHARLES E. EDWARDS, M.D.
H. H. CLARK
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.